Introduction

The case of Secretary of State for the Home Department v. Aibangbee ([2019] EWCA Civ 339) addresses the critical issue of how family membership is defined under the Immigration (European Economic Area) Regulations 2006 and its subsequent impact on the entitlement to a permanent residence card in the United Kingdom. The respondent, a Liberian national, sought a permanent residence card based on his enduring relationship with a Czech EEA national. The central legal controversy revolved around the commencement of the five-year continuous residence period required for permanent residency and whether the time spent before receiving a residence card should count towards this period.

Summary of the Judgment

The Court of Appeal upheld the Secretary of State's decision to refuse the respondent's application for a permanent residence card based on a five-year continuous residence requirement. The Secretary of State argued that the five-year period should commence from the issuance of the residence card in May 2013. However, the First-tier Tribunal (FTT) and the Upper Tribunal (UT) had earlier ruled in favor of the respondent, determining that the period should start from when the respondent began residing with his EEA partner in 2008.

The Court of Appeal, emphasizing the distinctions within the Directive 2004/38/EC concerning family members and extended family members, concluded that only the time post issuance of the residence card should be considered. Consequently, the respondent would only qualify for permanent residence in May 2018, aligning with the Secretary of State's original stance.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents:

• Rahman ([2013] QB 249): This case established the principle that under Directive 2004/38/EC, only family members as defined in Article 2(2) enjoy substantive residence rights, whereas extended family members have only procedural rights.
• Macastena v Secretary of State for the Home Department ([2018] EWCA Civ 1558): This case affirmed that the period of residence by an extended family member prior to the issuance of a residence card does not count towards the five-year continuous residence requirement.
• Secretary of State for the Home Department v Banger ([2019] 1 CMLR 6): Reinforced the distinction between family members and extended family members, particularly in the context of procedural safeguards under Article 3(2) of the Directive.
• SM (Algeria) v Entry Clearance Officer ([2018] UKSC 9): Cited as aligning with Rahman in interpreting the Directive's provisions regarding entry and residence rights.

Legal Reasoning

The Court's legal reasoning was anchored in the interpretation of Directive 2004/38/EC and its implementation through the 2006 Regulations. The Directive clearly delineates between 'family members' and 'extended family members,' with only the former having substantive rights to residence and the latter being subject to procedural facilitation.

The Court emphasized that the FTT and UT erred in conflating the time before the issuance of the residence card as part of the continuous residence required for permanent residency. By adhering to the Directive's definitions, the Court concluded that the five-year period should indeed commence from the date the residence card was granted, not from the commencement of the durable relationship.

Impact

This judgment has significant implications for immigration law, particularly concerning non-EEA family members seeking permanent residency based on durable relationships with EEA nationals. It reinforces the strict adherence to regulatory definitions and limits the scope of continuous residence required for permanent residency.

Future applicants in similar circumstances will need to ensure that their period of residence qualifying for permanent residency aligns with the issuance of residence cards, as pre-card residency does not contribute towards the five-year requirement.

Additionally, this decision underscores the judiciary's role in maintaining the integrity of legislative frameworks, ensuring that Executive interpretations do not extend beyond the prescribed legal boundaries.

Complex Concepts Simplified

Directive 2004/38/EC

Often referred to as the Freedom of Movement Directive, it grants EU citizens and their family members the right to move and reside freely within the EU member states. It categorizes family members into two groups:

• Family Members (Article 2(2)): Includes spouse, registered partners (under certain conditions), direct descendants under 21 or dependents, and dependent direct relatives in the ascending line.
• Extended Family Members (Article 3(2)): Includes other family members and partners not covered under Article 2(2), who have only procedural rights to entry and residence, not substantive rights.

Permanent Residence

A status that allows EU citizens and certain family members to reside indefinitely in a host member state, provided they have lived there legally for a continuous five-year period.

Regulation 15(1)(b) of the 2006 Regulations

Specifies the conditions under which a non-EEA family member acquires the right to permanent residence by residing with an EEA national for five continuous years.

Conclusion

The appellate decision in Secretary of State v. Aibangbee reaffirms the legal distinction between family members and extended family members under EU law, specifically Directive 2004/38/EC. By upholding the Secretary of State's interpretation, the court delineates the boundaries of substantive and procedural rights concerning residence and permanent residency.

This judgment underscores the necessity for non-EEA family members seeking permanent residency to secure official residence documentation before their period of residence can be counted towards the requisite five-year continuous residence. The clear demarcation ensures consistency in the application of immigration regulations and prevents the extension of rights beyond legislative intent.

Legal practitioners and applicants alike must heed the distinctions outlined in this case to navigate the complexities of immigration law effectively, ensuring that applications for permanent residence are timed and documented in accordance with regulatory requirements.